Citation Nr: 1626138 Decision Date: 06/29/16 Archive Date: 07/11/16 DOCKET NO. 08-10 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from November 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which granted service connection for diabetes mellitus and assigned an initial 20 percent evaluation for that disability, effective March 3, 2005. The Veteran testified at a personal hearing before a Decision Review Officer (DRO) in May 2008 and before a Veteran's Law Judge in May 2011. Transcripts of those hearings are associated with the claims file. The Veterans Law Judge who held the Veteran's hearing in May 2011 has retired from the Board. In a May 2012 letter, the Veteran was informed that the Veterans Law Judge was no longer employed by the Board and that he had a right to a hearing before an another Veterans Law Judge. No response to that letter was received. Therefore, the Board has determined that a further hearing is not warranted. In September 2011, April 2013, February 2014 and September 2015, the Board remanded the claim for further development. As noted in the September 2015 remand, a claim of entitlement to service connection for cardiomegaly, due to service-connected hypertension and diabetes mellitus, has been raised by the record but has not been adjudicated by the AOJ. The Board once again refers the claim to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board last remanded the claim in February 2014 in order for the RO to provide notice to the Veteran that a supplemental opinion had not been received from Dr. F., who reported the Veteran's diabetes required "regulated activities." Treatment records obtained from Dr. F. did not indicate that the Veteran's diabetes required regulation of activities. Thereafter, in November 2015 correspondence, the RO informed the Veteran that a supplemental opinion was requested but had not been received from Dr. F. and that the Veteran was ultimately responsible for providing this evidence to the VA. The Veteran did not respond to this letter. Therefore, the Board finds that the development requested has been completed. However, in a May 2016 post-remand brief, the Veteran, through his representative, reported that his diabetes mellitus had worsened since his last VA examination which was conducted in July 2013 and that it is now manifested by regulation of activities. A Veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). In light of the Veteran's contentions, the claim must be remanded in order to afford the Veteran a VA examination to determine the current severity of his diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current severity of diabetes mellitus. The examiner should review the claims file prior to the examination. All necessary tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with this condition. The examiner should provide a statement as to whether or not the Veteran's diabetes mellitus causes a regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. The examiner is also asked to indicate if the Veteran's diabetes requires hospitalization, and the number of visits per month the Veteran is required to see a diabetic provider. 2. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).